Chalachew Mohammed v The Secretary of State for the Home Department

Pending or potential Family Court proceedings do not, without more, require an immigration appeal to be adjourned or discretionary leave to be granted. The material question is whether there is a realistic prospect of a Family Court decision that will materially affect the child’s relationship with the parent facing removal or deportation.

Where the Family Court has already made the core welfare decision, and the evidence shows no realistic prospect of direct contact or rehabilitation, an immigration tribunal may determine proportionality on that basis. In deportation cases, serious and persistent offending and immigration wrongdoing carry substantial weight in the Article 8 balance.

The appellant, an Ethiopian national and foreign criminal, appealed against the First-tier Tribunal’s dismissal of his appeal against a deportation order made under section 32(5) of the UK Borders Act 2007.

He relied on his relationship with his daughter, who was subject to a care order and had been permitted indirect, but not direct, contact with him. He alleged procedural unfairness in the refusal of an adjournment, challenged the assessment of his risk of reoffending, and submitted that the appeal should have been adjourned or discretionary leave granted so that Family Court contact proceedings could be resolved.

The central issue was whether the existing and possible future Family Court proceedings required a different Article 8 outcome.

1. Appeal dismissed. The First-tier Tribunal made no error of law, and its dismissal of the appeal stood.

2. The refusal of an adjournment was not procedurally unfair. The appellant knew the substance of the social worker’s email and had already received adjournments to obtain Family Court material. The burden lay on him to establish the factual basis of his case.

3. The Family Court evidence showed that the core welfare decision had already been made. The child was to remain in local-authority care and the appellant had been refused direct contact. His asserted prospect of a greater role in her life was an aspiration, not substantiated evidence. Long-term foster care also envisaged permanent separation from the parents.

4. The guidance in RS (Immigration and Family Court) India [2012] UKUT 00218 (IAC), endorsed in Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363, did not assist the appellant. It concerns whether contemplated Family Court proceedings are realistically likely to produce a decision materially affecting the parent-child relationship. A mere possibility of a fresh contact application is not a relevant criterion.

5. The First-tier Tribunal was entitled to find that deportation would not prevent equivalent indirect contact from abroad. It also lawfully gave substantial weight to the appellant’s serious and persistent offending, his assessed risk of further offending, and his unlawful immigration history. The Article 8 balance was proportionate. Applying sections 117A-D of the Immigration Act 2014 made no difference.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal’s decision.
• First-tier Tribunal: decision sent on 29 May 2014 dismissing the appellant’s appeal against the deportation order.